What Is Probate?
Probate, also known as Estate Administration, is the method by which the assets of a deceased person are gathered, creditors paid, and the remainder of the estate distributed to beneficiaries or heirs. How is Probate Initiated?Although any beneficiary or creditor can initiate probate, normally the person named in the Will as Personal Representative or Executor starts the process by filing the original will with the court and filing a Petition for Administration with the court. If there is no will, typically a close relative of the decedent will file the Petition for Administration.
Where Does Probate Occur?
Your Will is probated in the Court of the county and state in which you lived at the time of your death. If you own any property in another state, another probate proceeding will be started in that state and county.
What Assets Are Subject To Probate Administration?
All assets owned by you in your own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration when you die. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Your property will be categorized as probate or non-probate property. Probate property is property that will be transferred by the provisions of your will. Non-probate property is property that is either jointly held and passes by right of survivorship, is directed by beneficiary designation, or passes according to the terms of a trust.
What Happens If A Person Dies Without A Will?
If a person dies without a Will, he/she will be considered to have died intestate. In this case, property will be distributed by the states laws. Often, the surviving spouse will get half the estate and any children will inherit the other half. If a person dies without a Will and without any trace of any heirs, all property will escheat (be turned over) to the state.
What Happens If A Person Dies With A Will?
In general, after the testator (the person with the Will) dies, the person named in the Will to carry out its terms (an executor or personal representative) files the original Will and other legal papers in a probate court, which is usually located in the county where the testator lived. The executor signs a petition to the probate court describing the circumstances under which the testator executed the Will, naming his or her heirs (the persons who would receive the decedent`s estate), describing the property interests passing under the Will, the legacies received by the beneficiaries and asking the court to admit the Will to probate. Unless they specifically agree to waive notice, each of the heirs must receive formal legal notice that a document purporting to be the Will has been offered for probate. The family members are given an opportunity to appear in court to contest (object to the Will); if they do not contest the Will and the probate judge finds the Will in order, he/she generally admits it to probate and formally appoints the executor. After probate, it is usually difficult for family members to upset a Will. In most states, it is possible for very small estates to be distributed through summary administration or small estates procedures. These procedures are less formal than traditional process of probate.
Is the Personal Representative or Executor Compensated?
Yes. Compensation for the Personal Representative or Executor is usually based on a percentage of the assets of the estate.
Who is responsible for paying estate taxes?
Under the Internal Revenue Code, the estate tax is collected from the estate of the deceased. Depending on the terms of the will, the estate tax may be paid from the probate estate only, or also from a living trust, life insurance proceeds, and other assets passing directly to beneficiaries outside the probate estate. The estate tax return, Form 706, is filed by the Personal Representative. The Form 706 is due to be filed 9 months after the date of death.